Lewandowski v. State, No. 579S130

Docket NºNo. 579S130
Citation389 N.E.2d 706, 271 Ind. 4
Case DateMay 17, 1979
CourtSupreme Court of Indiana

Page 706

389 N.E.2d 706
271 Ind. 4
Ronald E. LEWANDOWSKI, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below).
No. 579S130.
Supreme Court of Indiana.
May 17, 1979.

[271 Ind. 5]

Page 707

Max Cohen, Gary, for appellant.

Theodore L. Sendak, Atty. Gen., Robert F. Colker, Asst. Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

This cause is before us upon the defendant's (appellant's) petition to transfer from the Court of Appeals, Third District, that Court having affirmed his conviction and sentence by an opinion authored by Judge Hoffman and published at 374 N.E.2d 566. We now grant transfer to correct a sentencing error.

The defendant was charged by information with two counts of delivery and one count of possession of a controlled substance, marijuana. The possession count was dismissed by the State on October 2, 1975.

A jury returned a verdict of guilty on each count of delivery of a controlled substance and imposed a penalty of five years on each count. Judgment was entered by the trial court on October 27, 1975, and the defendant was sentenced to a term of imprisonment of five years.

At the time the offense charged was alleged to have been committed, the applicable law made delivery of a Schedule I Controlled Substance punishable by imprisonment for a determinate period of time not less than five (5) nor more than twenty (20) years, Ind.Code 1971, 35-24.1-4-1.

That Act was amended by the Acts of 1974, P.L. 152, § 10, 653, et seq., was repealed by the Acts of 1975, P.L. 338, § 3, 1800 at 1805-1806, codified at Ind.Code 1971, 35-24.1-4.1-10, effective July 29, 1975.

The substance of the repeal and the amendment was to make unlawful [271 Ind. 6] dealing in marijuana in an amount less than 30 grams a misdemeanor punishable by a determinate term of not more than one year. The evidence in the case at bar is undisputed that the amount of marijuana delivered with respect to each count was less than 30 grams.

Under identical facts, the Court of Appeals in Maynard v. State, (1977) Ind.App., 367 N.E.2d 5, held that Maynard should have been sentenced under the amended statute. In so doing, it applied the logic of dicta from its earlier case of Dowdell v. State, Ind.App., 336 N.E.2d 699, 702 n.8. This question was not presented to the trial court as the Maynard case had not yet been decided. In Dowdell v. State, supra, Judge Staton indicated that the enactment of a ameliorative sentencing amendment was, in itself, a sufficient indication of the legislative intent that it be applied to all to whom such application would be possible and constitutional, thereby obviating application of the general savings statute, Ind.Code 1971, 1-1-5-1 (Burns Code Ed.). We are comfortable with that viewpoint, inasmuch as that statute is a general savings clause only, as opposed to those often appended to specific enactments, as in the case of the Revised Criminal Code of 1977. We are, therefore, in agreement with the holding in the Maynard case and hold that the defendant should have been sentenced in accordance with the decision therein.

Page 708

Under Kleinrichert v. State (1973) 260 Ind. 537, 297 N.E.2d 822, a sentencing error may be raised at any time; and we are not advised as to why the issue was not tendered to the Court of Appeals as newly discovered reviewable error. It was presented by the petition for rehearing but was not addressed by the court an error that we can only charge to judicial oversight.

With regard to the issues decided by the Court of Appeals, however, we approve and adopt the opinion as written by Judge Hoffman, as follows:

"Defendant-appellant Ronald E. Lewandowski was charged by information with two counts of delivery and one count of possession of a controlled substance, to-wit: marijuana. The possession count was dismissed by the State on October 2, 1975. A jury returned a verdict of guilty on each count of delivery of a controlled substance and fixed appellant's penalty at five years on each count. Judgment was entered thereon by the trial court on October 20, 1975. Following the denial of his motion [271 Ind. 7] to correct errors, appellant perfected this appeal presenting the following issues for our review:

"(1) Whether the trial court erred in failing to require the State to disclose the identity of the informant at trial;

"(2) Whether the State showed a proper chain of custody for admission of State's Exhibit No. 1;

"(3) Whether the evidence was sufficient to show probable cause to suspect that he was engaged in criminal activity; and

"(4) Whether the trial court erred in granting the State's motion in limine preventing appellant from mentioning that the penalty for the sale of marijuana had recently been changed.

" Appellant first contends that the trial court erred in failing to require the State to disclose the identity of the informant at trial. The general policy in this regard is one of nondisclosure of the informer's identity. McCulley v. State (1971), 257 Ind. 135, 272 N.E.2d 613; Collett v. State (1975), Ind.App., 338 N.E.2d 286. In Roviaro v. United States (1957), 353 U.S. 53, at 59, 77 S.Ct. 623, at 627, 1 L.Ed.2d 639, the United States Supreme Court said:

" 'What is usually referred to as the informer's privilege is in reality the Government's privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law. Scher v. United States, 305 U.S. 251, 254, 59 S.Ct. 174, 176, 83 L.Ed. 151; In re Quarles and Butler, 158 U.S. 532, 15 S.Ct. 959, 39 L.Ed. 1080; Vogel v. Gruaz, 110 U.S. 311, 316, 4 S.Ct. 12, 14, 28 L.Ed. 158. The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation.'

"The privilege, however, is not without its limitations. Thus, the privilege yields in instances where disclosure of the informer's identity, or of the contents of his communication, is relevant and helpful to the defense of the accused or is essential to the fair determination of the cause, Roviaro v. United States, supra; McCulley v. State, supra; Collett[271 Ind. 8] v. State, supra; Garner v. State (1975), Ind.App., 325 N.E.2d 511; unless the State can show a paramount interest in nondisclosure or an unwarranted risk to the life of the informant. Collett v. State, supra; Garner v. State, supra.

"In Roviaro v. United States, supra, 353 U.S. at 62, 77 S.Ct. at 628-29, the court further stated:

" 'We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual's right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular

Page 709

circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors.'

" Since the State has the privilege to withhold the identity of an informer, the burden is upon the defendant seeking disclosure to demonstrate an exception to the privilege that the informer remain anonymous. United States v. Alvarez (9th Cir. 1973), 472 F.2d 111, Cert. denied, 412 U.S. 921, 93 S.Ct. 2742, 37 L.Ed.2d 148; United States v. Alvarez (9th Cir. 1972) 469 F.2d 1065; State v. Cortman (1968), 251 Or. 566, 446 P.2d 681 (on rehearing); Cert. denied, 394 U.S. 951, 89 S.Ct. 1294, 22 L.Ed.2d 487; State v. Gill (1975), 22 Or.App. 484, 539 P.2d 1138; Doe v. State (1972), Fla.App., 262 So.2d 11, citing...

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43 practice notes
  • HOLIDAY v. U.S., No. 95-CF-1054
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • July 30, 1996
    ...legislative intent that it be applied to all whom such application would be possible and constitutional" (quoting Lewandowski v. State, 389 N.E.2d 706, 707 (Ind. 1979)); People v. Behlog, 74 N.Y.2d 237, 544 N.Y.S.2d 804, 543 N.E.2d 69 (1989) (applying 10. The Rhode Island general savings st......
  • Bottoms v. B & M Coal Corp., No. 1-379A63
    • United States
    • Indiana Court of Appeals of Indiana
    • June 4, 1980
    ...v. State, (1978) Ind.App., 379 N.E.2d 1023; Lewandowski v. State, (1978) Ind.App., 374 N.E.2d 566, rev'd on other grounds, (1979) Ind., 389 N.E.2d 706. Given these criteria, the court properly prohibited disclosure of the informant's identity. Appellants claim the identity of the informant ......
  • Dorton v. State, No. 380S62
    • United States
    • Indiana Supreme Court of Indiana
    • May 6, 1981
    ...v. State, (1975) Ind.App., 325 N.E.2d 511; Ludlow v. State, (1973) Ind.App., 302 N.E.2d 838. See also Lewandowski v. State, (1979) Ind., 389 N.E.2d 706. The trial court did not err in overruling defendants' motion for Appellants next claim that the trial court erred in refusing to grant a c......
  • State v. Carpentino, No. 2012–632
    • United States
    • Supreme Court of New Hampshire
    • January 14, 2014
    ...intended that the new statute ... should 85 A.3d 914 apply to every case to which it constitutionally could apply."); Lewandowski v. State, 271 Ind. 4, 389 N.E.2d 706, 707 (1979) (approving view that "the enactment of [an] ameliorative sentencing amendment was, in itself, a sufficient indic......
  • Request a trial to view additional results
43 cases
  • HOLIDAY v. U.S., No. 95-CF-1054
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • July 30, 1996
    ...legislative intent that it be applied to all whom such application would be possible and constitutional" (quoting Lewandowski v. State, 389 N.E.2d 706, 707 (Ind. 1979)); People v. Behlog, 74 N.Y.2d 237, 544 N.Y.S.2d 804, 543 N.E.2d 69 (1989) (applying 10. The Rhode Island general savings st......
  • Bottoms v. B & M Coal Corp., No. 1-379A63
    • United States
    • Indiana Court of Appeals of Indiana
    • June 4, 1980
    ...v. State, (1978) Ind.App., 379 N.E.2d 1023; Lewandowski v. State, (1978) Ind.App., 374 N.E.2d 566, rev'd on other grounds, (1979) Ind., 389 N.E.2d 706. Given these criteria, the court properly prohibited disclosure of the informant's identity. Appellants claim the identity of the informant ......
  • Dorton v. State, No. 380S62
    • United States
    • Indiana Supreme Court of Indiana
    • May 6, 1981
    ...v. State, (1975) Ind.App., 325 N.E.2d 511; Ludlow v. State, (1973) Ind.App., 302 N.E.2d 838. See also Lewandowski v. State, (1979) Ind., 389 N.E.2d 706. The trial court did not err in overruling defendants' motion for Appellants next claim that the trial court erred in refusing to grant a c......
  • State v. Carpentino, No. 2012–632
    • United States
    • Supreme Court of New Hampshire
    • January 14, 2014
    ...intended that the new statute ... should 85 A.3d 914 apply to every case to which it constitutionally could apply."); Lewandowski v. State, 271 Ind. 4, 389 N.E.2d 706, 707 (1979) (approving view that "the enactment of [an] ameliorative sentencing amendment was, in itself, a sufficient indic......
  • Request a trial to view additional results

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